Christopher Shultz v. Brenda Elaine Morris

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Court of Appeals of the State of Georgia

ATLANTA,____________________ June 07, 2016

The Court of Appeals hereby passes the following order:

A16A1784. CHRISTOPHER SHULTZ et al. v. BRENDA ELAINE MORRIS et al.

Brenda Elaine Morris filed a complaint for accounting, breach of fiduciary duty, fraud, conversion, to set aside a deed, punitive damages, and attorney’s fees and expenses of litigation against Penny Roach Ettinger, Christopher Shultz and Celeste Price stemming from an alleged improper transfer of land held by a trust. In August 2014, the trial court granted summary judgment to Morris on the legal question of who has fee simple title to the subject property, setting aside the deed transfer. The court noted that all other claims were to proceed to trial. On January 26, 2015, Shultz and Price moved to set aside the trial court’s order, arguing that the court lacked subject matter jurisdiction and venue to grant summary judgment. The trial court denied this motion to set aside, and Shultz and Price filed this direct appeal.1 We lack jurisdiction. In substance, Shultz and Price’s motion is one to set aside under OCGA § 9-11- 60 (d). Pursuant to OCGA § 5-6-35 (a) (8), an appeal from an order denying a motion to set aside a judgment under OCGA § 9-11-60 (d) must be taken by application for discretionary review. See MMT Enterprises, Inc. v. Cullars, 218 Ga. App. 559, 561 (462 SE2d 771) (1995). Shultz and Price’s failure to file a discretionary application deprives this Court of jurisdiction over this appeal, which is hereby DISMISSED. See id.

1 The appeal was originally filed in the Supreme Court, which transferred the case to this Court after finding no basis for jurisdiction in the Supreme Court.

Court of Appeals of the State of Georgia 06/07/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.